Opinion
# 2016-015-167 Claim No. 127056 Motion No. M-88606
10-18-2016
SHAWN GREEN v. THE STATE OF NEW YORK
Shawn Green, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Christina Calabrese, Esquire Assistant Attorney General
Synopsis
Claimant's motion for summary judgment on his medical malpractice claim was denied and, upon searching the record, his cause of action for religious discrimination was dismissed.
Case information
| UID: | 2016-015-167 |
| Claimant(s): | SHAWN GREEN |
| Claimant short name: | GREEN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127056 |
| Motion number(s): | M-88606 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Shawn Green, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Christina Calabrese, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 18, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, moves for partial summary judgment on the issue of liability pursuant to CPLR 3212.
Claimant alleges causes of action for medical malpractice/negligence arising from treatment rendered at Great Meadow Correctional Facility (Great Meadow) during his temporary transfer to that facility. He also alleges a cause of action for religious discrimination. With respect to his cause of action for medical malpractice/negligence, claimant alleges that he was transferred from Upstate Correctional Facility to Great Meadow Correctional Facility on September 18, 2015 as part of a medical trip to Coxsackie Regional Medical Unit for treatment of his diabetes. Claimant alleges that upon his arrival at Great Meadow medical personnel altered the treatment plan set forth in a Health Transit Information form, as a result of which he suffered from hyperglycemia during his entire stay at Great Meadow - September 18, 2015 through September 29, 2015. Specifically, claimant alleges that his Health Transit Information form instructed that he was to receive three finger-stick tests per day to monitor his blood sugar (7:00 am, 4:00 pm, and 8:00 pm) and insulin on a sliding scale with "12 units of [Lantus at] 4 pm and Ensure at 8 pm" (defendant's Exhibit A, Claim, ¶ 4). At Great Meadow, however, claimant alleges Physician's Assistant Nesmith prescribed only one finger stick test at 4:00 p.m., insulin on a sliding scale, and Lantus dosages only. Claimant alleges that he became ill and that his requests for sick call were ignored and not documented in the sick-call logbook.
With respect to his cause of action for religious discrimination, claimant alleges he is a registered member of the Nation of Islam and that the defendant failed to serve him a holiday meal, as was served to other members of the Muslim faith, on September 26, 2015. Claimant's motion is supported by copies of the pleadings, certain prison logbook entries, a copy of an affidavit of W. Williams, a fellow inmate confined in the Great Meadow cellblock where claimant was housed, and uncertified excerpts from his medical records.
In opposition to claimant's motion, defendant submits certified copies of claimant's medical records and an affidavit from Dr. David Karandy. Dr. Karandy indicates claimant was temporarily housed at Great Meadow Correctional Facility for a medical appointment at Coxsackie Regional Medical Unit due to his poorly controlled diabetes. Upon his arrival, claimant was prescribed Lantus, a long-acting insulin, and what is known as "regular", a short-acting insulin (defendant's Exhibit D, Karandy affidavit, ¶ 5). Claimant's Lantus was increased from September 18, 2015 through September 24, 2015 due to very high finger-stick readings. Dr. Karandy indicates that he wrote orders on September 24, 2015 increasing the dosage of Lantus, increasing the frequency of the finger-stick blood tests, and increasing the frequency of the shorter-acting insulin from once daily to three times daily. Notably, these orders were in accordance with the consulting endocrinologist's report of September 21, 2015 (defendant's Exhibit C, p. 121). Dr. Karandy notes that when the Lantus was increased from 12 daily units to 18 units on September 24, 2015, claimant refused his "regular" insulin (defendant's Exhibit D, Karandy affidavit, ¶ 7). Dr. Karandy states that claimant's glycosylated hemoglobin was considered "fair" prior to his temporary housing at Great Meadow, but improved to "good" upon his transfer from that facility, indicating that his "overall control of his diabetic condition was improved due to the treatment rendered to him while at [Great Meadow Correctional Facility]" (defendant's Exhibit D, Karandy affidavit, ¶ 10). Dr. Karandy states further that claimant is a poorly controlled diabetic, that every effort was made to provide him effective treatment while he was housed at Great Meadow, and that he ordered "various changes of the dosage of his insulin in order to control his blood sugar" (id. at ¶ 11). Dr. Karandy states that claimant "often refused to take medications as ordered and therefore chose to be non-compliant with the care he was being provided" (id.).
Defendant's purported cross motion for summary judgment dismissing the claim failed to include a notice of motion as required by CPLR 2214 (a) and is therefore considered only in opposition to claimant's motion except to the extent indicated herein.
It is well settled that "the summary judgment movant bears the heavy burden of establishing 'a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact' " (Deleon v New York City Sanitation Dept., 25 NY3d 1102 [2015], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] CPLR 3212 [b]). Only where the movant has made such a showing does the burden shift to the opposing party "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Here, claimant failed to establish his prima facie entitlement to summary judgment. The law applicable to such claims is well settled. The State has a fundamental duty to provide adequate medical care to inmates in its prisons without undue delay (Auger v State of New York, 263 AD2d 929 [3d Dept 1999]; Kagan v State of New York, 221 AD2d 7 [2d Dept 1996]). This duty has been defined in terms of both negligence and malpractice (Lowe v State of New York, 35 AD3d 1281, 1282 [4th Dept 2006]). "Conduct may be deemed malpractice, rather than negligence, when it 'constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician' "(Scott v Uljanov, 74 NY2d 673, 674-675 [1989]; Bleiler v Bodnar, 65 NY2d 65, 72 [1985]). Where the claimant's allegations relate entirely to the professional skill and judgment of his treating professionals, a medical malpractice cause of action is alleged (Maki v Bassett Healthcare, 85 AD3d 1366 [3d Dept 2011], lv dismissed 17 NY3d 855 [2011], lv dismissed and denied 18 NY3d 870 [2012]).
To establish a prima facie case of medical malpractice, the claimant is "required to prove, through a medical expert, that [the defendant] breached the standard for good and acceptable care in the locality where the treatment occurred and that this breach was the proximate cause of [his] injury" (Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]; see also Morgan v State of New York, 40 AD2d 891 [3d Dept 1972], affd 34 NY2d 709 [1974], cert. denied 419 US 1013 [1974]); Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]; Berger v Becker, 272 AD2d 565 [2d Dept 2000]; Perrone v Grover, 272 AD2d 312 [2d Dept 2000]). Conversely, where only nondiscretionary medical protocols are alleged to have been breached, a cause of action for ministerial neglect is stated (Kagan, 221 AD2d at 10-11). Under either theory, liability does not attach absent competent medical evidence that the alleged negligence was a proximate cause of the claimant's ensuing medical problems (McFadden v State of New York, 138 AD3d 1167 [3d Dept 2016], appeal dismissed 28 NY3d 947 [2016]; Knight v State of New York, 127 AD3d 1435 [3d Dept 2015], appeal dismissed 25 NY3d 1212 [2015]; Myers v State of New York, 46 AD3d 1030, 1031 [3d Dept 2007]; Wood v State of New York, 45 AD3d 1198 [3d Dept 2007]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]; Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]). Inasmuch as claimant's allegations arise from the provision of medical treatment rather than the breach of a nondiscretionary medical protocol, the claim alleges a cause of action for medical malpractice. In support of his motion for partial summary judgment, however, claimant submitted no expert medical proof that the defendant deviated from the applicable standard of care or that any such deviation was a proximate cause of his injury or illness. Absent such proof, claimant failed to establish his prima facie entitlement to summary judgment and his motion must be denied.
To the extent claimant alleges the defendant failed to respond to his requests for sick call, he failed to establish the non-medical protocol allegedly breached or that he suffered injury as a result thereof.
Moreover, defendant's proof in opposition to the motion raised questions of fact requiring a trial. Dr. Karandy outlined in his affidavit the treatment provided to the claimant, the applicable standard for monitoring long term diabetic control, and that claimant's overall control of his diabetes was better when he left Great Meadow Correctional Facility than when he arrived. In his opinion, rendered with a reasonable degree of medical certainty, "the care that Claimant received did not deviate from the requisite standard of care" (defendant's Exhibit D, Karandy affidavit, ¶ 12). Dr. Karandy's affidavit, together with the submission of claimant's certified medical records, established the existence of material issues of fact requiring a trial.
Turning to claimant's complaints of religious discrimination, it is well-settled that a claim for a violation of the claimant's federal constitutional rights is not cognizable against the State in the Court of Claims (Brown v State of New York, 89 NY2d 172, 184-185 [1996]; Will v Michigan Dept. of State Police, 491 US 58 [1989]; Matter of Gable Transp., Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496 ). A cause of action for a violation of the State Constitution may give rise to a tort cause of action, but only where it is necessary to ensure the full realization of claimant's constitutional rights (Brown v State of New York, (supra); Martinez v City of Schenectady, 97 NY2d 78, 83 [2003]). The remedy is a narrow one, however, and may not be invoked where the claimant has an alternate avenue of redress (Martinez v City of Schenectady, 97 NY2d at 83; Flemming v State of New York, 120 AD3d 848, 849 [3d Dept 2014]; Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676 [3d Dept 2003]). Such an avenue of redress is available here. As noted by the Court of Appeals in Matter of Rivera v Smith (63 NY2d 501 [1984]), the right to the free exercise of religion has been extended to inmates pursuant to Correction Law § 610 (1) (see also Matter of Santiago v Fischer, 105 AD3d 1223 [3d Dept 2013]; Matter of Green v Fischer, 96 AD3d 1247 [3d Dept 2012], lv denied 20 NY3d 855 [2013], rearg denied 21 NY3d 897 [2013]; Matter of Cancel v Goord, 278 AD2d 321,322 [2d Dept 2000]; Jackson v Coughlin, 204 AD2d 939 [3d Dept 1994]). The statutory remedy is limited, however, to "proceedings in the supreme court of the district where such institution is situated, which is hereby authorized and empowered to enforce the provisions of this section" (Correction Law § 610 [3]). Given the availability of an alternative avenue of redress, the Court does not find that an action for money damages in the Court of Claims is necessary to ensure the full realization of claimant's constitutional rights. While defendant did not include a notice of cross motion as required by CPLR 2214 (a), unlike claimant's medical malpractice cause of action, claimant can not prevail on his religious discrimination cause of action as a matter of law. Accordingly, the Court exercises its authority under CPLR 3212 (b) to search the record and grant summary judgment in favor of the defendant dismissing this cause of action (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]).
Based on the foregoing, claimant's motion for partial summary judgment is denied and, upon searching the record, his cause of action for religious discrimination is dismissed.
October 18, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
Notice of motion dated May 4, 2016;
Affidavit of Shawn Green sworn to May 4, 2016 with exhibits;
Affirmation of Christina Calabrese dated June 29, 2016 with exhibits;
Claimant's reply to defendant's "cross motion" sworn to July 27, 2016 with exhibits.